People v. Buza

4 Cal.5th 658

413 P.3d 1132

230 Cal.Rptr.3d 681

The PEOPLE, Plaintiff and Respondent,

v.Mark BUZA, Defendant and Appellant.

S223698

Supreme Court of California

Filed April 2, 2018

J. Bradley O'Connell and Kathryn Seligman, under appointments by the Supreme Court; and Janice Wellborn, under appointment by the Court of Appeal, for Defendant and Appellant.

Michael T. Risher, San Francisco; Joseph R. Grodin; Paul Hastings, Peter C. Meier, San Francisco, Eric A. Long and Jamie L. Williams for American Civil Liberties Union Foundation of Northern California as Amicus Curiae on behalf of Defendant and Appellant.

Hanni Fakhoury, Jennifer Lynch and Lee Tien, San Francisco, for Electronic Frontier Foundation as Amicus Curiae on behalf of Defendant and Appellant.

Linda F. Robertson and Jennifer Friedman for California Public Defenders Association, California Attorneys for Criminal Justice and Los Angeles County Public Defender as Amici Curiae on behalf of Defendant and Appellant.

Daniel J. Broderick, Sacramento, David Porter and Rachelle D. Barbour for Federal Public Defender of the Eastern District of California and National Association of Criminal Defense Lawyers as Amici Curiae on behalf of Defendant and Appellant.

Edmund G. Brown Jr., Kamala D. Harris and Xavier Becerra, Attorneys General, Edward C. DuMont, State Solicitor General, Dane R. Gillette and Gerald A. Engler, Chief Assistant Attorneys General, Jeffrey M. Laurence, Assistant Attorney General, Steven T. Oetting and Michael J. Mongan, Deputy State Solicitors General, Max Carter-Oberstone, Associate Deputy State Solicitor General, Joyce Blair, Stan Helfman and Enid A Camps, Deputy Attorneys General, for Plaintiff and Respondent.

Fulbright & Jarowski, Norton Rose Fulbright US, Eric A. Herzog, Tillman James Breckenridge and Jonathan S. Franklin for DNA Saves as Amicus Curiae on behalf of Plaintiff and Respondent.

Steve Cooley and Jackie Lacey, District Attorneys (Los Angeles), Irene Wakabayashi, Steven Katz, Phyllis C. Asayama and Roberta Schwartz, Deputy District Attorneys, for Los Angeles County District Attorney as Amicus Curiae on behalf of Plaintiff and Respondent.

Jan Scully, District Attorney (Sacramento), Anne Marie Schubert, Deputy District Attorney; W. Scott Thorpe, Mark Zahner and Albert C. Locher for California District Attorneys Association as Amicus Curiae on behalf of Plaintiff and Respondent.

Jones & Mayer, Martin J. Mayer, James Touchstone and Deborah Pernice-Knefel for California State Sheriffs' Association, California Police Chiefs' Association and California Peace Officers' Association as Amici Curiae on behalf of Plaintiff and Respondent.

Hill Wallack, Christopher H. Asplen ; Newton Rimmel and Ronald F. Rimmel for Global Alliance for Rapid DNA Testing as Amicus Curiae on behalf of Plaintiff and Respondent.

Tony Rackauckas, District Attorney (Orange), Jim Tanizaki and Camille Hill, Assistant District Attorneys, Scott G. Scoville, Tammy Sprugeon, Andrew E. Katz, Katherine David and Nancy Hayashida, Deputy District Attorneys, for Orange County District Attorney as Amicus Curiae on behalf of Plaintiff and Respondent.

KRUGER, J.

In 2004, California voters passed Proposition 69 (Prop. 69, as approved by voters, Gen. Elec. (Nov. 2, 2004); known as the "DNA Fingerprint, Unsolved Crime and Innocence Protection Act" (DNA Act) ) to expand existing requirements for the collection of DNA identification information for law enforcement purposes. The DNA Act requires law enforcement officials to collect DNA samples, as well as fingerprints, from all persons who are arrested for, as well as those who have been convicted of, felony offenses. ( Pen. Code, § 296.1, subd. (a)(1)(A).)

Defendant Mark Buza was arrested for arson and related felonies and transported to jail. At booking, a jail official informed defendant that he was required to provide a DNA sample by swabbing the inside of his cheek. He refused. A jury later convicted him of both the arson-related felonies and the misdemeanor offense of refusing to provide a specimen required by the DNA Act. ( Pen. Code, § 298.1, subd. (a).)

The Court of Appeal reversed defendant's misdemeanor refusal conviction, holding that the DNA Act violated defendant's rights under the Fourth Amendment to the United States Constitution. While the case was pending on appeal, the United States Supreme Court addressed a similar issue in Maryland v. King (2013) 569 U.S. 435, 133 S.Ct. 1958, 186 L.Ed.2d 1 ( King ), and reached a different conclusion. The high court held that "[w]hen officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee's DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment." ( Id. at pp. 465–466, 133 S.Ct. 1958.)

Following the high court's decision in King , this case returned to the Court of Appeal. On remand, the Court of Appeal again reversed defendant's misdemeanor refusal conviction, this time on the ground that the DNA Act violates the California Constitution's prohibition on unreasonable searches and seizures. ( Cal. Const., art. I, § 13.)

Defendant raises a number of questions about the constitutionality of the DNA Act as it applies to various classes of felony arrestees. But the question before us is a narrower one: Whether the statute's DNA collection requirement is valid as applied to an individual who, like defendant, was validly arrested on "probable cause to hold for a serious offense"—here, the felony arson charge for which defendant was ultimately convicted—and who was required to swab his cheek as "part of a routine booking procedure" at county jail. ( King , supra , 569 U.S. at p. 465, 133 S.Ct. 1958.) Under the circumstances before us, we conclude the requirement is valid under both the federal and state Constitutions, and we express no view on the constitutionality of the DNA Act as it applies to other classes of arrestees. We accordingly reverse the judgment of the Court of Appeal in this case.

I.

A.

For decades before the DNA Act, California law had required the collection of biological samples from individuals convicted of certain offenses. In 1983, the Legislature enacted legislation requiring certain sex offenders to provide blood and saliva samples before their release or discharge. (Stats. 1983, ch. 700, § 1, pp. 2680–2681, codified at Pen. Code, former § 290.2.) In 1998, the Legislature enacted the "DNA and Forensic Identification Data Base and Data Bank Act," which required the collection of DNA samples from persons convicted of certain felony offenses, including certain sex offenses, homicide offenses, kidnapping, and felony assault or battery. (Stats. 1998, ch. 696, § 2, pp. 4574–4579; Pen. Code, former § 296, subd. (a).)

When the California electorate voted to pass Proposition 69 on the 2004 general election ballot, it substantially expanded the scope of DNA sampling to include individuals who are arrested for any felony offense, as well as those who have been convicted of such an offense. In People v. Robinson (2010) 47 Cal.4th 1104, 104 Cal.Rptr.3d 727, 224 P.3d 55 ( Robinson ), this court upheld the expanded DNA collection requirement as applied to persons convicted of felony offenses. The question now before us concerns the application of the DNA Act to persons who have been arrested for, but not yet convicted of, a felony offense.

In its statutory findings and declarations of purpose, Proposition 69 explained that expansion of the DNA databank program was warranted to serve a "critical and urgent need to provide law enforcement officers and agencies with the latest scientific technology available for accurately and expeditiously identifying, apprehending, arresting, and convicting criminal offenders and exonerating persons wrongly suspected or accused of crime." (Prop. 69, supra , § II, subd. (b).) With respect to arrestees in particular, Proposition 69 declared: "The state has a compelling interest in the accurate identification of criminal offenders"; that "DNA testing at the earliest stages of criminal proceedings for felony offenses will help thwart criminal perpetrators from concealing their identities and thus prevent time-consuming and expensive investigations of innocent persons" ; and "it is reasonable to expect qualifying offenders to provide forensic DNA samples for the limited identification purposes set forth in this chapter." (Id. , § II, subds. (e), (f).)

The DNA Act provides that, as of January 1, 2009, all adult felony arrestees "shall provide buccal swab samples, right thumbprints, and a full palm print impression of each hand, and any blood specimens or other biological samples required pursuant to this chapter for law enforcement identification analysis." ( Pen. Code, § 296, subd. (a).) Providing a buccal swab sample requires the arrestee to apply a swab to the inside of his or her cheek to collect the "inner cheek cells of the mouth," which contain DNA. (Id. , § 295, subd. (e).) The statute provides that these specimens, samples, and print impressions shall be collected "immediately following arrest, or during the booking ... process or as soon as administratively practicable ... but, in any case, prior to release on bail or pending trial or any physical release from confinement or custody." (Id. , § 296.1, subd. (a)(1)(A).) Refusal to provide any of the required specimens is punishable as a misdemeanor. (Id. , § 298.1, subd. (a).)

Collected DNA samples are sent to California Department of Justice's DNA Laboratory for forensic analysis. ( Pen. Code, §§ 295, subds. (f), (g), (i)(1)(C), 295.1, subd. (c).) The laboratory uses the samples to create a unique DNA identification profile, using genetic loci that are known as "junk" or "noncoding" DNA, because the loci have no known association with any genetic trait, disease, or predisposition. (See King , supra , ...